Daily Development for
Thursday, September 17, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

Here are some interesting interpretations of words from the latest Quarterly Report:

WORDS AND PHRASES; "BUILDING:" Restrictive covenant precluding construction of any "building" on parcel other than a "dwelling house" did not preclude developer of shopping mall from constructing a commercial driveway, retaining wall, lights and illuminated signs on the disputed parcel.

Richman v. Mosites, 704 A.2d 655 (Pa.Super. 1997), discussed under the heading: "Servitudes; Covenants; Use Restrictions; Residential Only.'"

WORDS AND PHRASES; "CONTRACTOR:" A manufacturer of modular homes is a "contractor" within the meaning of a statute of repose which defines a contractor as one who makes an improvement to property.

Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 573 N.W.2d 611 (Mich. 1998).

As subrogee to the owner of a modular home, an insurance company sued the manufacturer for payments made to the owner following a fire allegedly caused by a poorly designed vent fan. The court held that the insurer's action was barred by a statute of repose that protects contractors who have made improvements to land. The court found no basis for treating the manufacturer of a modular home differently from a contractor who, by traditional construction techniques, builds a home on the site where the home will remain.

WORDS AND PHRASES; "FLOOR AREA:" In calculating the floor area ratio for zoning purposes under the New York City Zoning Resolution, floor area does not include habitable basement area. Raritan Development Corp. et al. v. Silva et al., 689 N.E.2d 1373 (N.Y. Ct. App. 1997).

WORDS AND PHRASES; "OWNER:" Homeowners who execute a contract with vendors/builders to purchase real property improved by a dwelling to be constructed during the executory period of contract, are not "owners" of the property under the mechanics' lien law and their equitable interest cannot be reached by a mechanic's lien.

Wolf Organization, Inc. v. Oles, 119 Md. App. 357, 705 A.2d 40 (Md. App. 1998).

WORDS AND PHRASES; "ROAD:" Where a city elects to close an existing city street to vehicular access periodically in order to create a pedestrian mall, the meaning of the word "road" in the original 1814 grant to the city "for the purpose of a road and for no other purpose" will not be viewed as expressing the grantor's intent that a "road" necessarily requires uninterrupted vehicular access.

Cohen v. City of Hartford, 710 A.2d 746 (Conn. App. 1998).

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.